An earlier post examined a sample of supreme court decisions from the 1920s that spanned a wide range of concerns. Today’s post draws from the same years but narrows its focus to the realm of marriage and divorce.[1] As with the first post, the cases on marriage and divorce were chosen because their analysis or facts evoke a bygone era. Although the issues may be recognizable, something about the disputes or the justices’ thinking feels remote—an inevitable consequence of time passing. Indeed, perusing these sources may tempt one to ponder which cases currently before the supreme court will appear strange, humorous, or regrettable to observers peering back at us a hundred years hence.
A rape victim charged with adultery. (Dietrich v. State, 187 Wis. 136).
On May 24, 1924, Dorothy Dietrich went for a drive to State Fair Park with an acquaintance named Struck and two of his friends, one of whom was said to own some racehorses there. Shortly after the three men entered a barn at the fairgrounds, another man emerged and “attempted to take certain liberties with her person” while she sat in the car. Dietrich jumped out of the car and tried to flee, screaming loudly enough for a policeman to hear her a block and a half away.[2] Two of the men then grabbed her and compelled her to have sex with a number of them in various places around the fairgrounds (largely deserted that evening). She pleaded to be taken home, to no avail. Instead, the men drove her to a saloon and then set out on the road again, heading away from her home in Milwaukee. Fearing another assault, she sprang from the moving car and ran to a nearby house, whose occupant, an elderly woman, admitted her. She explained what had happened, and the woman’s son called the police on her behalf.
The men were quickly arrested and charged—along with Dietrich, because she was married—with adultery.[3] At trial, Dietrich claimed that she had been raped, but a Milwaukee County municipal court found her guilty of adultery.[4] She then appealed to the supreme court, which reversed her conviction.
Writing for a unanimous majority, Justice Christian Doerfler did not mute his disagreement with the lower court’s verdict. “[F]rom all the surrounding facts and circumstances it cannot be inferred that she had any notion whatsoever of entering into immoral relations with either Struck or any of his companions.” Not only did Dietrich notify the police immediately, Justice Doerfler added, she had clearly been coerced.
Worst of all, in Justice Doerfler’s view, “[n]o more serious offense can be committed on a female than that of rape.” It was beyond murder, because “[m]urder results in the death of the victim. It ends all suffering, and he is free from future humiliation, remorse, regret, or reproach. But a female who is the victim of a ravisher is bound to go through life with a stain upon her character, and she is the subject of idle and malicious gossip for the rest of her days, and unthinking mankind points at her the finger of shame and of scorn.”
“Alienation of affections.” (Helminiak v. Przekurat, 184 Wis. 417).
At a circuit court trial in Portage County, where a husband (Helminiak) alleged that his wife was engaged in an adulterous relationship with another man (Przekurat), the jury found in favor of Helminiak. Przekurat was ordered to pay compensatory and punitive damages for “alienation of the affections” of Helminiak’s wife.
In an effort to mitigate the damage awards, Przekurat’s attorney sought to call Helminiak’s nine-year-old daughter Theresa to testify that Helminiak himself had sexual relations with his wife’s fourteen-year-old sister and with another woman. Helminiak’s counsel protested that this testimony would be “contrary to public policy and morality”—to which the judge agreed, adding that “during the thirty or thirty-five years that I have been at the bar, the most dangerous testimony in matters of this kind, involving sexual relations, is an infant’s testimony. It is unaccountable how a child can lie and persist in lying on such propositions. It is the history of this circuit . . . that men have been convicted and sentenced and punished on the perjured testimony of infants of tender years. So I am going to sustain the objection.”
Przekurat appealed to the supreme court, which accepted his argument that Theresa should have been allowed to testify.[5] In doing so, Justice Christian Doerfler’s unanimous opinion remarked that the circuit court had repurposed an “alienation of affection” rationale for blocking Theresa’s testimony: “It appears also that the court refused to permit the witness to testify upon the ground that her testimony would have a tendency to alienate her affections from her father.” This strained credulity, he chided, “for, assuming the truth of the incident to which the witness was called upon to testify, her respect and love and affection for her father had already been alienated by reason of the immoral and criminal exhibition on his part …” The circuit court’s judgment was overturned.
Underage husband annuls marriage to pregnant wife. (Swenson v. Swenson, 179 Wis. 536).
A sixteen-year-old plaintiff deceitfully obtained a marriage license, claiming that he was over 21, so that he could marry a twenty-year-old woman whom he had gotten pregnant. His twenty-year-old bride did not know that he was underage. The marriage took place on July 21, 1920, and less than two months later he abandoned his still-pregnant wife. Roughly two weeks after that, he filed to have the marriage annulled. The circuit court for Pierce County ruled that, although the plaintiff himself misrepresented his age, he was entitled to an annulment because he was under the legal age of consent (18 for males and 15 for females).[6]
His former wife, now alone with a baby, appealed to the supreme court. There she found no relief, as the justices determined unanimously that, because the husband was underage, the marriage could be annulled. It was not automatically void, they noted, because an underage party to a marriage could “confirm” the marriage once he or she reached legal age—assuming the marriage had endured to that point—but, of course, such was not the case here.
What constitutes sufficient fraud to annul a marriage? (Wells v. Talham, 180 Wis. 654).
A Roman Catholic man (the plaintiff) married a Methodist Episcopal woman (the defendant). The woman told the man that she was a widow when, in fact, she was divorced, and her former husband was still alive. Such a marriage was forbidden by the man’s faith, and when he discovered the deception shortly after the wedding, he filed for an annulment on the grounds of fraud. A Milwaukee County circuit court granted his request, prompting an appeal from his wife to the supreme court. The husband, who was 78 years old and in frail health, died during the appeal, so his executor argued the case to the justices.
In a unanimous decision the supreme court reversed the lower court and denied the annulment. “[W]e fully appreciate the disappointment of the decedent when he discovered that he had been cruelly deceived,” Justice Burr Jones acknowledged. “But the degree of disappointment realized by a spouse on the discovery of hidden and disagreeable facts in the past life of the other spouse can hardly be the basis for annulling a marriage unless there has been fraud going to the essentials and material elements on which the marriage relation rests.” The nature of the deceit in the present case did not rise to this level, the court ruled. Indeed, Justice Jones supposed that the complaints presented by the husband would, “in the opinion of many,” seem “far less productive of marital unhappiness than falsehoods leading a sensitive and honorable man into marriage with a woman whose life had been sexually impure.”[7]
“Bastardy.” (Riley v. State, 187 Wis. 156).
Riley was prosecuted for “bastardy”—fathering a child born to a woman married to another man. The mother, though married, was not living with her husband and worked as a housekeeper for Riley. She testified that she had sex on several occasions with Riley—and no contact with her husband—making Riley the father of her baby, born five months after she departed Riley’s home. Riley denied any sexual encounters with the mother, but a Pierce County circuit court jury found him to be the baby’s father, largely due to testimony from the mother’s sister. If there had been any contact between the mother and her husband, the sister stated, the mother would have told her about it.
Riley appealed to the supreme court, which overturned the judgment from the lower court and ordered a new trial. On behalf of a unanimous court, Justice Burr Jones emphasized that according to “an ancient and one of the strongest presumptions of the common law, … a child born in lawful wedlock is legitimate.” Although the sister testified that she talked multiple times each week with the mother who would certainly have informed her had there been any contact with the husband, the court deemed this insufficient to exclude the husband as the potential father of the baby. Because the stakes in these cases were high, Justice Jones explained, “it is the law in this state, based upon grounds of public policy as well as that of the protection of the good name of children born under such circumstances, that a strong degree of proof is required to bastardize children born in wedlock.”[8]
Is a marriage engagement a contract? (Ableman v. Holman, 190 Wis. 112).
The plaintiff (Ableman) alleged that the defendant (Holman) broke a promise to marry her and conspired with another defendant, Marie Kalk, to bring about this breach. A Sheboygan County circuit court jury concluded that Holman, after promising to marry Ableman, did indeed conspire with Kalk to break the engagement—and awarded Ableman the substantial sum of $15,000 in damages. Holman and Kalk appealed to the supreme court.
In a unanimous reversal, Justice Marvin Rosenberry noted that while violation of a contract is normally unlawful, a marriage contract is an exception to the rule. Apropos of the case at hand, if a person, “by solicitations, or by the arts of ridicule or otherwise, shall induce one to break off an existing contract of marriage, no action will lie for it, however contemptible and blamable may be the conduct.”[9] If such litigation were permitted, third parties “may be subject to answer in damages for advising or inducing an engaged person to break the engagement, [which] might result in a suit by every disappointed lover against his successful rival.”[10]
Must a teacher use her married name? (State ex rel. Thompson v. Board of School Directors, 179 Wis. 284).
In 1914 Elsie Dickerhoff began teaching in the Milwaukee public school system. Seven years later the school board approved the following regulation: “Married women teachers shall not be transferred, promoted or permanently appointed to regular teaching positions except in clearly attested cases where the teacher becomes the sole support of a family by reason of the death or incapacity of the husband and that married teacher shall be known by her married name on all school records and printed matter.”
The last phrase—that a married teacher must use her married name on all school records—became the issue here, when Elsie Dickerhoff married Peter Thompson two months after the adoption of the rule quoted above. During the remainder of the semester, she did not inform the school principal of her marriage and continued signing school documents with her maiden name. After making her marriage known to the principal prior to the start of the fall semester, she was fired by the school board for violating the rule that married teachers must use their married names on school records. In response, she obtained a writ of mandamus from the circuit court, ordering that she be reinstated, with back pay, and an allowance of $250 for her legal expenses. The school board appealed to the supreme court.
In a unanimous decision, Justice Franz Eschweiler affirmed the circuit court’s judgment, finding “no showing of any wilful or intentional flouting of the authority of the school board” and noting that “[t]he rule itself was silent as to how soon after such a change [marriage] the fact of such change should be reported.” In short, the entire record of the case “is barren of anything indicating any harm or damage actually done in the administration of the school affairs, to school discipline, or control, and in the absence of such showing we cannot assume that there was anything else.”[11]
May a wife conclude a business contract (and later rescind it) independently of her husband? (Wallace v. Newdale Furniture Co., 188 Wis. 205).
The plaintiff (Wallace) purchased roughly $500 worth of furniture on credit from the Newdale Furniture Company (Newdale). She was a minor (“about twenty years of age”) and wanted the furniture for keeping roomers in the house that she shared with her husband. When she and her husband separated eight months later, she had made payments to Newdale totaling only $145.
Unable to continue payments, she returned the furniture and sought reimbursement of the $145. Newdale accepted the furniture but refused to return the $145, arguing that, although Wallace had signed the purchase contract, she should be regarded as simply an agent for her husband. In other words, Newdale claimed, her husband was the “real party in interest,” and Wallace herself had no standing in court. A Milwaukee County circuit court sided with Wallace, granting her demand for $145, and Newdale appealed to the supreme court.
Writing for a unanimous majority, Justice Burr Jones affirmed the circuit court. One problem with Newdale’s position, he explained, was that “there is not a syllable of testimony to support it. The husband took no part in buying the furniture, was not in favor of the proposed business venture, and in no way authorized the plaintiff to act for him.” Moreover, Newdale cited no authority to bolster the broader contention that when a wife starts her own business venture for which she purchases property on credit, she is transformed by law into the agent of her husband.
Up to this point, Justice Jones’s opinion seemed to convey hearty endorsement for wives embarking on their own business initiatives. However, the next sentence revealed his concern that Newdale’s stance would also make husbands responsible for the debts of reckless spousal entrepreneurs: “If husbands may thus be made answerable, unawares, for the business speculations of their wives, there would be some ground for the assertion which has been made in jest, that the next great revolution must be by married men to obtain their rights.”
So, where did this leave Wallace? If wives could legally negotiate their own business contracts, was Wallace bound by her contract with Newdale? She would be, were she an adult, Justice Jones clarified, but minors lacked the right to conclude such contracts. Therefore, the contract at issue was not valid. It could be “disaffirmed” and the $145 returned to Wallace.[12]
[1] Cases have been selected from five terms in the mid-1920s: 1922-23 through 1926-27.
[2] The policeman later testified that he attempted unsuccessfully to locate the source of the screams.
[3] Divorce proceedings were underway for Dietrich and her husband, but they were not yet final.
[4] The men claimed that their sexual relations with Dietrich were consensual, in exchange for money.
[5] There were other issues as well, but Theresa’s testimony was the most important.
[6] The trial court also ordered maintenance for the parties’ child, born on November 8, though the materials at hand do not provide details on the nature or extent of this support.
[7] In short, concluded the decision, none of the allegations in the husband’s complaint supported an inference “that the defendant is not able and willing to perform all the duties of the marriage contract, and we must hold that it appears on the face of the complaint that the essentials of the marriage contract, as construed by the great weight of authority, were complied with.”
[8] The justices also objected to one of the jury instructions, which read: “‘This presumption of innocence attends the defendant throughout the whole trial and prevails until overcome by proof of guilt beyond a reasonable doubt.’” “If the evidence on the subject of non-access had been clear and satisfactory, perhaps this charge would not be held reversible error,” Justice Jones concluded. “But in view of the very unsatisfactory proof on this subject and the error in the instruction, we think that the defendant is entitled to a new trial.”
[9] Quoting 1 Cooley, Torts (3d ed.) p. 494 and cases cited.
[10] Quoting Homan v. Hall, 102 Neb. 70, 165 N.W. 881. To be sure, Justice Rosenberry continued, if the “breach of contract is induced by slanderous or libelous statements or brought about by duress or other unlawful means, an action will lie for the wrongs thus committed, and the special injury that the party sustained by reason of the breaking off of the engagement may be considered in determining the damages.” This had not occurred here, however, prompting the justices to reverse the entire judgment and remand for a new trial.
[11] The supreme court rejected the $250 for legal expenses, concluding that the statute on mandamus proceedings did not allow awards for attorney fees.
[12] As for wear and tear on the furniture: “We are not called on to decide the question because there is no claim for such use or deterioration in the answer and for the stronger reason that no evidence was offered on the subject.”
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